Date: Tue, 19 Jun 2007 22:45:59 -0700
From: Norm Matloff
To: Norm Matloff
Subject: "gotcha" immigration law firm videos make a big splash
To: H-1B/L-1/offshoring e-newsletter
Recall that a set of videos was placed onto YouTube by a law firm that
handles business immigration (and other) cases. They also placed a link
to the videos on their own Web page. The conference itself is described
at http://www.cohenlaw.com/news-events-134.html Apparently they thought
this would be good advertising, but it is turning out to be a major
embarrassment to them, as they unintentionally showed the world just how
dirty the system is. It is also, as such, a major embarrassment to
those who are pushing Congress for expanded H-1B and green card
programs.
As most of you know, my constant message over the years has been that
abuse of the H-1B work visa and employer-sponsored green cards stems NOT
from lack of enforcement of the law, but rather from LOOPHOLES in the
law. Some fraud exists, yes, but the vast majority of abuse comes in
full compliance with the law, due to the gaping loopholes.
This set of videos gave a dramatic inside look at some of the loopholes,
especially in the case of the employer-sponsored green cards. Here you have
lawyers openly stating that their goals are to (a) help employers avoid hiring
Americans, and (b) help employers hire foreign nationals on the cheap--and to
do all this FULLY LEGALLY.
In this posting:
1. I'll report on the news that the videos have now been removed
from YouTube.
2. I'll give some more excerpts from the videos, so that
you can get a closeup look at some of the loopholes.
3. I'll cite a quote from one of the firm's lawyers made to the
press in one of the industry's many planted articles. You'll
find that the contrast between his public claims and what he
and others from the firm said in the conference is striking,
and shows rank hypocrisy.
4. I will also enclose reports on the videos from InformationWeek,
Computerworld (titled "H-1B Shocker") and Lou Dobbs Tonight.
Before I get to that material, let me reiterate the importance of
loopholes, which I regard as the central issue in H-1B and
employer-sponsored green cards. Reform legislation currently being
considered in Congress is missing the boat, as it deals mainly with
anti-fraud measures, and addresses the loopholes only to a limited
degree.
OK, now to the videos. The conference was held by the firm of Cohen and
Grigsby. One of the partners, Larry Lebowitz, is the moderator. Other
lawyers from the firm who speak include Jennifer Pack, Matthew Phillips,
Jennifer Barton, and Alex Castrodale.
Let's start with some material near the end of video 9 of the set. To explain
what is involved there, note first that although the law for
employer-sponsored green cards requires that American workers must be sought
before the employer resorts to hiring a foreign worker for a job (a
requirement NOT in H-1B), this requirement is routinely circumvented. Though
Computerworld called the video set described below as a "shocker," readers of
this e-newsletter know, for instance, the outrageous comments by a well-known
immigration attorney: "Employers who favor aliens have an arsenal of legal
means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of
U.S. Workers," Immigration Daily, April 24, 2000; available at
www.ilw.com/articles/2000,0424-Stewart.shtm). See also Stewart's "Dear
Abby"-style help column for employers, at
http://www.ilw.com/articles/2006,0606-citations.shtm in which he advises an
employer how to hire a foreign worker instead of an American applicant, even
though the American "appears qualified and has good references."
So when you read the material below, keep in mind that this is NOT a
rogue law firm. Indeed, one of the firm's lawyers, John Brendel (who
also speaks in the videos), was formerly Chair of the Immigration Policy
Committee of the ITAA, the prominent industry lobbying group. What this
firm is doing is LEGAL and STANDARD.
Now, here is the theme of video 9. Lebowitz asks Pack to speak about
the Dept. of Labor's PERM requirements for recruiting Americans for the
job in question. Again, remember that the law on employer-sponsored
green cards requires that an employer who wants to sponsor a foreign
national for a green card must first try to recruit qualified Americans
for the job. Lebowitz and Pack show how an employer can comply with the
law while at the same time doing his best to NOT find a qualified
American. One way to do that is to advertise in obscure places. Here's
what Lebowitz says:
# And our goal is clearly, not to find a qualified and interested U.S.
# worker. And you know in a sense that sounds funny, but it's what we're
# trying to do here. We are complying with the law fully, but ah, our
# objective is to get this person a green card, and get through the labor
# certification process. So certainly we are not going to try to find a
# place [at which to advertise the job] where the applicants are the most
# numerous. We're going to try to find a place where we can comply with
# the law, and hoping, and likely, not to find qualified and interested
# worker applicants.
Those remarks immediately followed Pack's presentation on advertising
venues, in which she said:
# Fortunately, DOL gives 10 options, from which you can select three.
As can be seen from Lebowitz's followup, Pack's meaning is that you
select the three most obscure places you can find. Pack also
recommends,
# You can also advertise in local and ethnic newspapers, such as the
# Pittsburgh Courier.
The Courier is a black newspaper. While ordinarily placing ads there
would be commendable minority outreach, here Pack obviously means to
that one should choose that venue because of the anticipated small
number of American applications it will generate.
Yet they will receive some American applications, and in video 10 the firm
then explains what to do with them--i.e. how to reject them. First, the
employer can describe the applicant as not interested in the position!
Barton says:
# If they [the American applicant] don't like the salary, don't like the
# work location, [we deem them to be] not interested...Those are ways
# we can disqualify them, get them out of the market...
Note the "don't like the salary" part. In the free market, employers
would have to negotiate with applicants. But having access to foreign
workers changes that. So here is one of many, many ways in which
employers can hire foreign workers more cheaply than Americans--and
remember, it's all FULLY LEGAL.
Barton continues:
# If it gets to the point where somebodys' looking like they're very
# qualified, we ask [the employer] to have the manager of that specific
# position step in and go over the qualifications with them--if necessary
# schedule an interview, go through the whole process to find a legal
# basis to disqualify them for this position--in most cases there doesn't
# seem to be a problem.
In other words, there is always a way to reject any American applicant,
just as Stewart said.
In video 12, the key issue of prevailing wage is discussed in detail.
Remember, this applies to both employer-sponsored green cards and H-1B.
Since the hiring of foreign nationals in either case is fundamentally
about acquiring cheap labor, the loopholes here are especially
important.
The law states that the employer must pay the foreign worker at least
the prevailing wage. This is defined in the law and regulations, and it
is here where so many loopholes reside.
Pack tells employers what to do if the prevailing wage they claim is
deemed too low by the Dept. of Labor:
# First, we have to remember that the wage offered to the [foreign]
# employee is the wage the the employee will be earning when he or she
# gets his or her green card, not the salary he'll be making now. So
# if the prevailing wage comes back $3,000 or $4,000 higher than the
# employee's actual salary, then we can estimate that it will probably
# be three or four years until he gets his green card, then it is
# reasonable for that employee's salary to be increased by that amount
# at the time he gets his green card. Then we have no issues...
This loophole is a new one to me, very interesting. Workers normally
get raises each year, but the prevailing wage law/regs allow the
employer to UNDERPAY the person for a few years!
And there is an even more important subtlety here. Did you notice that
she is projecting only a $3,000 or $4,000 raise over the course of three
to four years? An American would get much higher raises than that. But
the foreign worker is captive, a de facto indentured servant, so the
employer can get away with giving him smaller raises than Americans.
Pack then notes that the employer can try to find an alternate wage survey.
Many critics of H-1B mistakenly cite this as the major reason why the legally
required "prevailing wage" is typically well under the market wage. But
actually, the next one cited by Pack can reap much larger savings for the
employer. (That "projected future wage" method discussed above looks like it
could be worked into a much larger bounty than $3,000 or $4,000 too.)
# ...let's say [the government prevailing wage] is $10,000 or $15,000
# higher than the employee is going to be making, then we may want to
# consider reworking our requirements, maybe scaling back from a Master's
# degree to a Bachelor's, or going from five years of prior experience to
# two
This is a loophole I've mentioned many times. The key point is that the
legal definition of prevailing wage is tied to the JOB, not to the
WORKER. So if the job requires only a Bachelor's degree and a Master's
would be just considered a plus, then prevailing wage is legally defined
as the Bachelor's-level salary. In other words, the employer gets to
hire a foreign worker with a Master's degree but pay him only a
Bachelor's-level salary, again FULLY LEGALLY.
As Pack mentions, the employer can then also hire a more-experienced
foreign worker for the salary of a less-experienced American, again
FULLY LEGALLY.
This is also somewhat related to the age issue, which central to H-1B.
Employers hire young H-1Bs (median age 27.4) instead of 40-year-old (i.e. more
experienced) Americans.
Castrodale notes that you should put in all the technical skills ("UNIX,
SQL, SAP") that the job requires, in order to disqualify many of the
American applicants. Now, he does not actually say that the employer
should load up the job description with so many skills that the
foreign national being sponsored is the only person in the world to
qualify, but in practice this is often what is done.
Even more importantly, this goes to the prevailing wage issue.
Prevailing wage determination, either by government agency or by private
wage survey, generally does NOT take into account "hot" technical
skills. So, the employer can hire a foreign worker with hot skills but
not have to pay him the hefty premium that those skills would command on
the open market. Meanwhile, the employer can use that skill set to
disqualify most or all of the American applicants. A double win for the
employer, and a double whammy for the U.S. worker.
Similarly, suppose the foreign worker has a degree from a prestigious
university. On the open market, the employer would have to pay more for that,
but not for H-1Bs and green card sponsorees--again due to the fact that the
prevailing wage is determined by the JOB, not the WORKER.
And remember, the above examples are only a few of the many giant
loopholes in the law.
Note that the regulation (20 CFR 655.731,
http://www.dol.gov/dol/allcfr/ETA/Title_20/Part_655/20CFR655.731.htm) says
that the employer must pay the higher of the prevailing wage and the actual
wage. The latter is defined as follows:
$ The actual wage is the wage rate paid by the employer to all other
$ individuals with similar experience and qualifications for the
$ specific employment in question. In determining such wage level, the
$ following factors may be considered: Experience, qualifications,
$ education, job responsibility and function, specialized knowledge,
$ and other legitimate business factors. "Legitimate business factors,"
$ for purposes of this section, means those that it is reasonable to
$ conclude are necessary because they conform to recognized principles
$ or can be demonstrated by accepted rules and standards. Where there
$ are other employees with substantially similar experience and
$ qualifications in the specific employment in question -- i.e., they
$ have substantially the same duties and responsibilities as the H-1B
$ nonimmigrant -- the actual wage shall be the amount paid to these
$ other employees. Where no such other employees exist at the place of
$ employment, the actual wage shall be the wage paid to the H-1B
$ nonimmigrant by the employer.
So again, if most workers have only a Bachelor's degree, this can work out to
a Bachelor's level salary or a little higher. Better yet, the phrase, "Where
there are other employees with substantially similar experience and
qualifications in the specific employment in question" obviously is a gigantic
loophole; the actual wage is then simply the wage of the H-1B!
For those of you readers who are journalists, Hill staffers, academics
and so on, I hope you keep these videos in mind every time you see an
immigration lawyer quoted in the press, saying that employers hire
foreign workers only as a last resort when no Americans are available.
Always keep in mind that, as you can see above, what they are really
doing is helping employers AVOID finding American workers.
There is a perfect example of this gross duplicity with that same law
firm, in a quote of attorney Phillips of that firm. Here is an excerpt
from Crush of Applicants for Visas Has Firms Fearing Staff Losses, Anya
Sostek, Pittsburgh Post-Gazette, April 5, 2007:
# The visas are so essential, they say, because there just aren't
# qualified Americans to fill the jobs.
# "If the numbers [of U.S. workers] were available in the economy, no
# one would pay us to do this [visa application process]," said
# Phillips, noting that in addition to legal costs, companies pay
# thousands of dollars to the government for each visa application.
I hate to use such a strong word as "lying," but what other conclusion
can one come to? Phillips and the others are claiming to the press and
to Congress that employers really try hard to find Americans before
hiring foreign workers, while the videos from Phillips' firm show
exactly the opposite.
Concerning Phillips' citing of the legal costs, remember that employers
are often saving $100,000 or more over the six-year span of an H-1B.
(Green cards are often taking that long now too, an issue also discussed
in the videos.) So the legal costs are minor in comparison to the
amount saved.
Unfortunately, the videos are no longer on YouTube. I wrote last Friday
that as soon as the law firm got wind of the fact that their videos were
being viewed and used by critics of the H-1B program, they would remove
the videos from YouTube. As the enclosed article reports, that indeed
happened yesterday afternoon.
However, as of the moment, the Programmers Guild has an annotated excerpt
of Part 9 of the video at http://www.youtube.com/watch?v=TCbFEgFajGU
This is well worth watching, to get a feel as to how slimy (sorry to
put it that way) these immigration lawyers actually are. You've got to
hear these people's tones of voice, see their body language, etc., and
above all see their complete lack of scruples, all in front of a crowd
of people.
The three items from the press follow below. Note that they do not
always distinguish between H-1B and employer-sponsored green cards, so
you have to be a bit careful, but since almost all of the green card
sponsorees are H-1Bs, it doesn't really matter that much.
[Update: To see subsequent my postings on this topic, see the files
named LegalNewspaperViewOfTubeGate.txt, PittsburghYouTube.txt,
TubeGateFirmReplies.txt and CohenAndGrigsbyPrevailingWage.txt, e.g.
http://heather.cs.ucdavis.edu/Archive/LegalNewspaperViewOfTubeGate.txt]
Norm
InformationWeek
YouTube Video On Avoiding U.S. Job Applicants Angers Programmers
IT professionals criticize a law firm's video play-by-play description on
how to circumvent the PERM process in favor of H-1B visas.
By Mary Hayes Weier, InformationWeek
June 18, 2007
http://www.informationweek.com/story/showArticle.jhtml?articleID=199905192
YouTube bites again. A law firm's attempt to get positive exposure for an
immigration law conference by posting it on You Tube backfired when an
organization that's been tough on H-1B visas and offshore outsourcing copied
it and made a controversial video of its own.
In the original video, posted by the firm Cohen & Grigsby from a May 15
conference, an attorney is shown advising attendees on how to meet the
minimum requirements of advertising a job to U.S. candidates so that a
foreign worker can more easily be hired. The firm's conference dealt with
the U.S. government's labor certification requirement for foreign workers,
the first step in helping them obtain green cards. The law requires that an
employer prove there are no qualified U.S. citizens for a permanent job
being offered before hiring a non-citizen.
In one 10-minute segment of the conference video, a panel of lawyers are
shown discussing Program Electronic Review Management (PERM), an electronic
labor certification system the government put in place two years ago to
reduce certification to under 60 days. It was that portion of the video
lambasted by the Programmers Guild, an organization of IT professionals that
is staunchly protectionist against the loss of U.S. jobs to foreign workers
both onshore and offshore.
The PERM process requires that an employer post a job in at least three
places and allow 30 days for job candidates to respond for the employer to
review resume. If no interested and qualified U.S. workers respond, an
employer can instantly and electronically apply for a foreign worker's labor
certification.
In the video, a Cohen & Grigsby attorney advises attendees that posting the
job at an employer's Web site and with a local newspaper is usually enough
to fill the minimum requirement, if the newspaper also posts the job online.
Another attorney, Lawrence Lebowitz, adds, "We're going to try to find a
place [to advertise] where we are complying with the law and hoping, and
likely, not to find qualified and interested worker applicants." A different
firm attorney mentions less desirable methods that are more likely to pull
in qualified and interested workers, including job fairs, online job sites
like Monster.com, campus recruitments, and job placement firms.
In its YouTube video, the Programmer's Guild accuses the firm of using fake
job ads to fulfill the PERM process. "These ads constitute fraud on American
job seekers," says the organization in its text leading into the video.
Contacted at his Pittsburgh office the afternoon of June 18, Lebowitz said
he was reviewing the matter with other partners in the firm and declined
comment at this time.
The law firm removed the conference video sometime between 4 p.m. and 5 p.m.
Eastern daylight time on June 18.
http://transcripts.cnn.com/TRANSCRIPTS/0706/19/ldt.01.html
DOBBS: The government has a guest worker program. In fact, several of
them. But you wouldn't know that listening to either President Bush or
the Democratic leadership of the Senate. In fact, the United States
government issues some 80 different types of visas and administers a
half-dozen guest worker programs right now.
As the Senate considers expanding the guest worker program, critics
fear it will only offer employers even greater incentive to bypass
American workers in favor of cheap, foreign labor. Further driving down
wages and working conditions for Americans.
Christine Romans has our story.
(BEGIN VIDEOTAPE)
CHRISTINE ROMANS, CNN CORRESPONDENT (voice over): There are a
half-dozen guest worker programs meant to fill U.S. labor shortages with
foreign labor. In this grainy seminar video posted on the file-sharing
site YouTube, a Pittsburgh law firm on how to use loopholes to ensure
foreign workers can get the jobs instead of Americans.
LAWRENCE LEBOWITZ, VP MARKETING, COHEN & GRIGSBY: And our goal is
clearly not to find a qualified and interested U.S. worker.
ROMANS: The Programmer Guild, a high-tech worker advocacy group,
spliced together several minutes of footage, including an apparent
how-to for meeting minimum requirements for advertising a job.
LEBOWITZ: So, certainly, we are not going to try to find a place where
the applicants are going to be the most numerous. We're going to try to
find a place again where we're complying with the law and hoping -- and
likely not to find qualified and interested worker applicants.
ROMANS: The seminar has since been removed. After repeated calls and
e-mails, a spokeswoman for the law firm would only say the event was to
educate their clients and would not confirm the substance of the
seminar. It all comes as the debate over guest worker programs
intensifies.
SEN. CHUCK GRASSLEY (R), IOWA: Quite frankly, we have evidence that a
lot of companies are using H-1B skilled worker program for illegal
immigrants at the very same time that they could be hiring Americans.
ROMANS: Senator Grassley has long been concerned about H-1B visa abuse,
and recent congressional testimony highlighted humanitarian concerns in
the H-2A and H-2B programs.
RON HIRA, ROCHESTER INST. OF TECHNOLOGY: You try to control one set of
misuse in one category, and employers will just adapt and go to another
visa category and start to misuse those.
ROMANS: He says employers are gaming the system. But advocates of guest
worker program say they're essential for the economy, especially in
agriculture, where more legal slots are needed.
JAMES HOLT, AGRICULTURE ECONOMIST: We're talking about bringing the
workers that are coming in now illegally into the United States in a
legal, controlled program. And I'm -- I think anybody and everybody
would be in favor of that.
ROMANS: Fraud and abuse can be stopped, he says, if Congress allocates
more resources and personnel.
(END VIDEOTAPE)
ROMANS: And now the Senate is considering revamping the entire system,
giving Z visas for workers already in the country illegally and Y visas
for those who want to come. But worker advocates fear a new system will
only mean a new generation of loopholes -- Lou.
DOBBS: I don't even know if we can call them "loopholes." I mean that's
a pretty startling, straightforward statement that business and those
that support business, the law firms and everyone else, they're just
basically trying to screw the American worker. And to hear the Senate
talking about its nonsense associated with this amnesty legislation.
Couple of little facts that Bill Gates, wanting unlimited H-1B visas,
the president saying you got to have a guest-worker -- the most
tortured logic to come from the president's mouth, I think, is we can't
secure our border without a guest-worker program. No one can construct
any kind of reason from that statement.
But there are two facts that people keep forgetting -- seven out of 10
visa requests under the H-1B program come from Indian companies in the
United States to provide employees to outsource to American companies
and reduce wages. And the other little minor item which is supposed to
be high-skill jobs, four out of five jobs under the H-1B program are
level-one jobs, not level four, i.e., low-skilled jobs, not
high-skilled jobs. These are Americans trying to screw American
workers. And it just is as plain, straightforward and can anyone
convince any of us that the president of the United States and this
Senate with this sham amnesty program isn't aware of these facts?
ROMANS: Senators Grassley and Dick Durbin have actually sent a letter
to the government. They've been asking some hard questions about the
H-1B program and fraud and trying to make sure that any kind of
loopholes are closed so we'll see how far they can get.
DOBBS: Well, Durbin is supporting amnesty, Grassley is opposed to it.
So 50 percent shot of some reason prevailing. At least in that
instance. Perhaps higher if we see any kind of semblance of character
and honesty in the days and weeks ahead. Christine, thanks for the
illuminating report. Christine Romans.
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9025268&intsrc=news_ts_head
Computerworld
H-1B video shocker: 'Our goal is clearly not to find a qualified . . . U.S.
worker'
June 19, 2007 (Computerworld) -- The high-tech industry can tap big names,
such as Microsoft Corp. Chairman Bill Gates, to argue that the U.S. needs
more foreign workers with IT skills. But opponents of the H-1B visa program
have a weapon that may prove just as effective: YouTube.
The Programmers Guild, a professional organization based in Summit, N.J.,
has posted a video (see below) on YouTube Inc.'s Web site featuring excerpts
from a series of videos that had been posted previously by Pittsburgh-based
law firm Cohen & Grigsby PC. The law firm's videos were recorded May 15
during a seminar and apparently were intended to provide free legal tips to
hiring managers and other viewers.
But the video put together by the Programmers Guild is providing explosive
material for H-1B critics.
In the video, a person identified as Lawrence Lebowitz, an attorney at Cohen
& Gribsby, explains a method that can be used for hiring foreign workers
under the U.S. government's Program Electronic Review Management process.
PERM stipulates requirements for placing help-wanted ads to fill job
vacancies, with the intent of either hiring U.S. workers or showing that no
qualified Americans are available.
However, Lebowitz focuses only on the latter in the video. "Our goal is
clearly not to find a qualified and interested U.S. worker," he says. "And
that, in a sense, sounds funny, but it's what we are trying to do here."
He adds that while "complying with the law fully," the objective is to get a
prospective foreign worker a green card "and to get through the labor
certification process." He and other panelists go on to explain the ways in
which employers can legally reject applicants for positions in order to meet
that goal.
Lebowitz didn't answer calls to his office seeking comment on the matter,
and a receptionist at Cohen & Grigsby referred calls to a public relations
representative, who didn't return them.
The Programmers Guild has added subtitled commentary and some music to the
video to help dramatize key points. For instance, in one subtitle, the text
asks: "If there were a 'shortage of U.S. workers,' would employers need to
hire these immigration attorneys to help them avoid finding qualified
candidates?"
But John Miano, the group's founder and treasurer, said via e-mail that he
wasn't surprised by what he saw. "There is nothing new here," he wrote.
"We've known this has been going on for years. There have been printed
accounts in the past, but the video makes the point much better."
Miano added that he hopes people take away the message that "worker
protections in the [H-1B] law are a joke. Here we see how blatant people are
about getting around them."
Last year, the Programmers Guild filed complaints with the U.S. Department
of Justice against hundreds of IT employers that it claimed were
discriminating against U.S. citizens and permanent residents by placing
help-wanted ads that specifically seek "H-1B only" visa holders or workers
who have student or L-1 visas.